Last Updated: March 2019
These terms of service (these “Terms”) govern your use of the websites, extensions, mobile applications, downloadable applications and software, services and products (collectively, our “Services”) offered to you by Position Mobile Ltd. SEZC (the “Company,” “we,” “us,” “our”), and which contain a link to these Terms. These Terms are a legally binding agreement between you and us.
WE OFFER OUR SERVICES TO YOU CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS WITHOUT MODIFICATION OR EXCEPTION. PLEASE READ THESE TERMS CAREFULLY. YOUR USE OF OUR SERVICES CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS. THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIABILITY. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE PROHIBITED FROM USING OUR SERVICES.
Section 1. Our Services; Rights; Restrictions and Licenses.
(a) Unless otherwise presented at the time a particular Service is made available to you for use, all of our Services are provided to you free of charge, subject to your adherence to these Terms. The nature of the Services offered are described to you at the time you access such Services. By using our Services, you acknowledge and agree that such Services contain our own proprietary content as well as content provided from third parties (collectively “Content”). While we endeavor to provide useful, accurate and up to date Services, we do not guarantee the accuracy, integrity or quality of the Services or any of the Content. Additionally, you acknowledge and agree that you may be exposed to Content that you find offensive, indecent, or objectionable or that is inaccurate or out of date. You agree to bear all risks associated with the use of our Services and such Content, including exposure to Content through such Services. If you do not like or find offensive our Services or Content, your sole remedy is to immediately cease your use of the Services and access to the Content. We maintain the right, but not the obligation to remove any Content that we determine in our sole discretion violates these Terms or that is otherwise objectionable at any time and for any reason.
(b) You acknowledge and agree that all Content made available on or through the Services are protected by applicable intellectual property rights, including without limitation, copyright and/or trademark law. For purposes of clarity, such Content may include without limitation, photographs, marks, logos, written content, illustrations, graphics, images, sound or video clips, and Flash animation, whether owned by us or third parties with which we have a relationship. Under no circumstances may you modify, sell, license, transfer, publish, transmit, reproduce, create derivative works of, distribute, publicly perform, publicly display, or in any way exploit any of the Content or any aspect of our Services, in whole or in part.
(c) Subject to your compliance with these Terms, we grant you an individual and personal, revocable, non-transferrable, non-assignable, non-exclusive right to access and use the Services and Content for your own personal use. Any use of the Services and Content other than for your own personal use and enjoyment is strictly prohibited and shall constitute a breach of these Terms.
(d) In some cases we may require registration prior to use of our Services. If we request registration information from you, you will provide us with true, accurate, current, and complete information. You will promptly update your registration to keep it accurate, current, and complete. If we issue you a password, you may not reveal it to anyone else. You may not use anyone else’s password. You are responsible for maintaining the confidentiality of your accounts and passwords. You agree to immediately notify us of any unauthorized use of your passwords or accounts or any other breach of security. You also agree to exit from your accounts at the end of each session. We will not be responsible for any loss or damage that may result if you fail to comply with these requirements.
(e) Some of our Services may be subject to additional posted terms and/or conditions. Your use of those Services is subject to those additional terms and/or conditions, which are hereby incorporated into these Terms by reference. In the event of any conflict or inconsistency between these Terms and any additional posted terms and/or conditions, the provisions of the additional terms and/or conditions shall control.
(f) Certain of the Services we offer require you to pay a fee or charge, as described in the specific conditions included where those Services are offered. You agree to pay all fees and charges that you incur. Unless otherwise noted, all currency references are in U.S. dollars. We may, upon notice if required by applicable laws, at any time change the amount of, or basis for determining, any fee or charge, or institute new fees or charges. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. By using our paid Services and/or clicking on the appropriate button or otherwise indicating your agreement, in any order, you submit for our Services, you are agreeing to be bound by these Terms and you authorize Company to charge your credit card for the payment amount indicated with respect to the Services you are purchasing. By indicating your agreement, you are authorizing us to use such consent in lieu of your physical signature and that by indicating your agreement you are responsible for complying with these Terms. An electronic copy of your acceptance of these Terms will be stored in our systems and will be used to confirm to your credit card company and/or your bank your acceptance of the payment charge.
(g) The Services may contain links to other Internet websites and services owned by third parties. Your use of each of those websites and services is subject to the conditions, if any, that each of those websites has posted. You acknowledge and agree that we have no control over websites that are not ours, and we are not responsible for any changes to and/or content on them. Our inclusion of any third-party Content or a link to a third-party website or service is not an endorsement of such third party content or third-party site. Your correspondence or related activities with third parties, including payment transactions and goods-delivery transactions, are solely between you and that third party. You agree that we will not be responsible or liable for any loss or damage of any sort incurred as the result of any of your transactions with third parties. Any questions, complaints, or claims related to any product or service should be directed to the appropriate third party.
(h) Certain of the Services may automatically download and install updates from time to time from the Company, as the Company may determine in its sole discretion. Any such updates will be designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. Without further notice or consent, you agree to receive such updates (and permit the Company to deliver these to you) as part of your use of the Services.
(i) Certain of the Services may be based, in part, upon open source license agreements, available here. Our provision of the Software and Services to You and Your use of same, shall always be subject to such open source license agreements, to the extent applicable.
Section 2. Your Content.
(a) You are solely responsible for all materials, whether publicly posted or privately transmitted, that you upload, post, e-mail, transmit, or otherwise make available on or through the Services (“Your Content”). You certify that you own all intellectual property rights in Your Content. You hereby grant us, our affiliates, and our partners a worldwide, irrevocable, royalty-free, nonexclusive, sub-licensable, license to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish Your Content and subsequent versions of Your Content for the purposes of (i) pursuing our business interests, (ii) distributing Your Content, either electronically or via other media, to third parties seeking to download or otherwise acquire it, and/or (iii) storing Your Content in a remote database accessible by third parties. This license shall apply to the distribution and the storage of Your Content in any form, medium, or technology now known or later developed.
(b) If you believe that Your Content has been copied and made accessible through the Services and/or as part of the Content in a manner that violates your intellectual property rights, you may submit a claim notice to us at email@example.com.
(c) Be advised that under 17 U.S.C. 512(f), knowingly making a material misrepresentation that online material or activity is infringing or that material or activity was removed or disabled by mistake or misidentification, you may be subject to heavy civil penalties. These penalties include monetary damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider who is injured by your misrepresentation. Any copyright infringement claims notice MUST include at least (1) proper identification of the allegedly infringing material or to be the subject of the allegedly infringing activity along with a demand that such allegedly infringing material be removed or access disabled, along with sufficient information for the Company to adequately locate the material; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single Service are covered by a single notification, a representative list of such works available at that Service; (3) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (4) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (5) information reasonably sufficient to permit Company to contact you, such as address, phone number, and, if available, an email address at which you may be contacted; and (6) a physical or electronic signature of a person authorized to act on behalf of the owner of the allegedly infringed work (the “Notice Requirements”). If the Notice Requirements are not met, the Company may disregard the notice pursuant to 17 U.S.C. 512(c)(3).
(d) To the extent we remove your materials as a result of the complaints of another pursuant to this Section 2, we may notify you of this fact and will provide you with the email address of the complaining party so that you may attempt to resolve the issue. You may object to such determination by writing to our designated agent, which must contain the following information pursuant to 17 U.S.C. 512(g)(3), (1) your physical or electronic signature; (2) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (3) a statement under penalty of perjury that the you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (4) your name, address, and phone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you address is outside of the United States, for any judicial district in which the service provider may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. 512(c)(1)(C) or an agent of such person.
Section 3. Communications to You.
You understand and agree that by utilizing our Services, you agree to receive communications from us, including emails, push notifications, text messages, and other forms of communications, regarding our Services and other third-party business offerings. You further understand and agree that our Services may include communications from us or from our partners to you and that these communications are considered part of the Services. To opt out of receiving communications from us via email, please email us at firstname.lastname@example.org or click on the “unsubscribe” link at the bottom of any communication you receive from us. Please be aware that we do not and cannot control the policies of any third parties who distribution any communications to you.
Section 5. Your Conduct.
(a) The technology and the software underlying our Services is the property of the Company, our affiliates, operators, providers, parent companies, and/or partners. You agree not to sell, assign, distribute, reverse engineer, copy, modify, rent, lease, loan, grant a security interest in, or otherwise transfer any right to the technology or software underlying the Services. You agree not to modify the software underlying the Services in any manner or form or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Services.
(b) Without limiting the prohibitions set forth in Section 5(a) above, you agree that you will not use the Services to (i) publish, post, upload, e-mail, distribute, or disseminate (collectively, “transmit”) any offensive, inappropriate, profane, defamatory, infringing, vulgar, sexually explicit, obscene, indecent, or unlawful content or any hate speech (e.g. racist/discriminatory speech); (ii) transmit files that contain viruses, corrupted files, spyware, trojan horses, worms, time bombs, cancelbots, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, the Services, any software or hardware, or telecommunications equipment; (iii) restrict or inhibit any other user from using and enjoying any aspect of the Services; (iv) interfere with or disrupt the Services, servers, or networks; (v) impersonate any person or entity, including, but not limited to, a representative of the Company, or falsely state or otherwise misrepresent your affiliation with a person or entity; (vi) take any action that imposes an unreasonably or disproportionately large load on our infrastructure; or (vii) engage in any illegal activities.
(c) Unauthorized access to the Services is a breach of these Terms and a violation of the law. You agree not to access the Services by any means other than through the interface that is provided by us for use in accessing the Services. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Services, except those automated means that we have approved in advance and in writing.
(d) In all cases, use of the Services is subject to existing laws and legal process and you should comply with such laws and legal process at all times. Nothing contained in these Terms shall limit our right to comply with governmental, court, and law-enforcement requests or requirements relating to your use of the Services.
Section 6. Termination, Suspension and Other Company Rights.
(a) We at all times have the right, without obligation, to take certain actions with respect to the Services and your use of the Services and Content in our sole and absolute discretion at any time and for any reason without giving you any prior notice, including, without limitation, the right to (i) terminate, suspend, or otherwise restrict your access to all or any part of our Services; (ii) remove, refuse, or move any material that you submit to the Services for any reason; (iii) remove, refuse, or move any Content that is available on or through the Services; and (iv) establish general practices and limits concerning use of the Services and Content.
(b) You agree that under no circumstances whatsoever will we, or our partners, affiliates, operators, or parent companies be liable to you or any third party for taking any of the actions set forth in Section 6(a) above for any reason or no reason at all. You further agree to refrain from bringing any action against us, or our parents, affiliates, operators, or partners for our taking any of the actions set forth in Section 67(a) above for any reason or no reason at all.
Section 7. Indemnification.
You hereby agree to indemnify, defend and hold Company and all of its operators, officers, directors, owners, employees, agents, information providers, affiliates, parent companies, partners, and licensors (collectively, the “Company Parties”) harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by any Company Parties in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, or trademark infringement arising out of (i) your use of the Services and/or Content; (ii) the content, the quality, or the performance of Your Content; (iii) your connection to the Services and/or Content; (iv) your violation of these Terms; or (v) your violation of the rights of any other person or entity. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
Section 8. Disclaimer; No Warranties.
We, and our parents, owners, agents, Content providers, employees, licensors, affiliates, and our partners: (i) disclaim any responsibility for the deletion, the failure to store, the mis-delivery, or the untimely delivery of any information or material; (ii) disclaim any responsibility for any harm resulting from downloading or accessing any Content accessible by or through the Services and/or Content; (iii) disclaim any responsibility for any service outages that are caused by our maintenance on the servers or the technology that underlies the Services, failures of our service providers (including telecommunications, hosting, and power providers), computer viruses, natural disasters or other destruction or damage of our facilities, acts of nature, war, civil disturbance, or any other cause beyond our reasonable control.
WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. IN ADDITION, WE DO NOT MAKE ANY WARRANTY AS TO THE CONTENT ON OR AVAILABLE THROUGH THE SERVICES. THE SERVICES AND ALL CONTENT ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS. ANY MATERIAL THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY POTENTIAL DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR DOWNLOAD OF ANY SUCH MATERIAL. NEITHER WE NOR ANY OF OUR PARTNERS OR PROVIDERS MAKES ANY WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL THAT YOU OBTAIN THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS WILL BE CORRECTED. NEITHER WE NOR ANY OF OUR PARTNERS MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES, ANY CONTENT, OR ANY OF OUR SERVICES, TOOLS, PRODUCTS, OR PROPERTIES. YOU EXPRESSLY AGREE THAT YOU WILL ASSUME THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SERVICES AND THE ACCURACY OR COMPLETENESS OF ITS CONTENT.
NEITHER WE NOR OUR PARTNERS, AFFILIATES, OPERATORS, OR PARENT COMPANIES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY AND THAT OF OUR THIRD-PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Section 9. Remedy; Arbitration; Governing Law.
(a) IF YOU ARE DISSATISFIED WITH THE SERVICES OR CONTENT, IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS, OR IF YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST US OR A THIRD PARTY WITH RESPECT TO THESE TERMS, THE SERVICES, OR THE CONTENT, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES AND/OR CONTENT.
(b) We may elect to resolve any controversy or claim arising out of or relating to these Terms or the Services by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Miami-Dade County, Florida, USA, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Either you or we may seek any interim or preliminary relief from a court of competent jurisdiction in Miami-Dade County, Florida, USA, necessary to protect the rights or the property of you or the Company (or its agents, suppliers, and subcontractors), pending the completion of arbitration.
(c) These Terms and any disputes arising directly or indirectly hereunder, shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its choice of law provisions. EACH PARTY HERETO EXPLICITLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR CONTROVERSY ARISING OUT OF THESE TERMS.
Section 10. Miscellaneous.
(a) We may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon our posting them on the Services or delivering them to you through an electronic communication in accordance with Section 3 hereof. You may update your communication preferences by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we cannot be held liable if we fail to notify you.
(b) Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
(c) You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(d) These Terms, including all terms, conditions, and policies that are incorporated into these terms by reference, constitute the entire agreement between you and us and govern your use of the Services, superseding any prior agreements that you may have with us.
(e) If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Terms shall continue in effect.
Section 11. Modification of Terms.
At any time and without notice to you, we may modify these Terms by posting revised Terms on the Services. Your continued use of the Services constitutes your unconditional and binding acceptance of these Terms, including any amendments, revisions, alterations, modifications and/or supplements that we make from time to time in accordance with the provisions of hereof.
Section 12. Contact Us.
If you should have any questions or comments regarding these Terms or the Services, you can contact us at email@example.com.